SECTION IV. TRANSFER BY MARRIAGE. 466. Rights of the husband upon the wife's contracts before marriage at common law. At common law, the husband by the. marriage acquires a qualified property in the wife's choses in action; but it is a qualified property only; for, until he has reduced them into his possession, they remain the property of the wife; and if the husband omits to reduce them into his possession in his lifetime, they survive to the wife, who is alone entitled to the benefit of them. (¿) The husband and wife have therefore a joint interest in them.1 But as the husband has the power of immediately enforcing a claim of the wife, forbearance by him from so doing is a sufficient consideration to support a promise made to him alone; (k) and upon such a promise the husband alone must sue, as the wife is no party nor privy to it. (7)1 1 If the husband has commenced a joint action in his own name and in that of his wife, for the purpose of reducing the wife's chose in action into possession, and the wife dies before judgment, the husband's right is gone, and the unrecovered chose in action vests in the personal representative of the wife; but if the wife dies after judgment, but before execution (1) Milner v. Milnes, 3 T. R. 631. (k) Rumsey v. George, 1 M. & S. Sherrington v. Yates, 12 M. & W. 865. 1 180. (1) Lea v. Minnie, Yelv. 84. See ante, pp. 258-271 (§§ 168-175), and notes thereto. the husband alone is entitled to the benefit of the judgment, and may have execution thereon. (m) If the husband receives money which was owing to the wife, or if he, or he and his wife, authorize a person to receive it, who actually obtains it, either of such modes of receipt will change the wife's interest in the property, and will be a reduction of the chose in action into the possession of the husband, divested of her title to it upon surviving him; (2) but, when money owing to the wife is received by a person as agent for the husband and wife to carry into effect certain specified objects, he cannot, against the will of the parties, treat this as a reduction into possession by the husband on his own account and for his own purposes. (0)1 The husband is alone entitled during the coverture to the benefit of covenants running with the wife's land, and may sue alone even after the wife's death for all breaches not in the nature of continuing breaches, where the ultimate damage has accrued durring the coverture, or he may sue jointly with the wife in her lifetime. Where, however, the breach of a covenant running with the land is a continuous one, and may continue after the death of the husband, as in the case of breaches of covenant for title and further assurance of the wife's lands, the wife will be entitled to such damages as may result from the continuing breach of the contract after the coverture is at an end, and therefore both should join in suing. (p)2 The (m) Checchi v. Powell, 6 B. & C. 253; 9 D. & R. 243. Gabriel Miles' Case, I Mod. 179. (n) 1 Rolle Abr., D. 350. Co. Litt. 351, a. Temple v. Temple, Cro. Eliz. 79L 2 (0) Jones v. Cuthbertson, L. R., 7 Q..B. 218. (p) Alebury v. Walby, I Str. 229. Dunstan v. Burwell, 1 Wils. 224. Bro. Abr. Covenant, p. 110. Brett v. Cum. berland, 3 Bulst. 163; Cro. Jac. 399. See ante, pp. 258-271 (§§ 168-175), and notes thereto. husband is also entitled to the benefit of all bills of exchange and promissory notes payable to the wife not indorsed by her before marriage. (9) In the exercise of his marital rights also, he may at once indorse them, the wife's power of indorsement over them being superseded by the marriage, and vested in the husband. (r) If the husband does not reduce choses in action of this nature into his possession in his lifetime, they survive to the wife. The receipt by the husband of interest on a promissory note made to the wife before the marriage, is no evidence of a reduction of the note into the possession of the husband during the coverture. (s)1 1 467. Rights of the husband upon the wife's contracts by statute.-The married women's property act, 1870, (1) has very much modified the common-law right of the husband to his wife's property, and in a less degree, his right to her choses in action. By s. 2 of that act, deposits in savings banks made by, and annuities granted by the commissioners for the reduction of the national debt to, women who afterwards marry, remain the separate property of such women, and are to be accounted for and paid to them as if they were unmarried women. And a woman, married after the passing of that act, will be solely entitled to the benefit of covenants running with any freehold, copyhold, or customary land which may descend to her as heiress of an intestate. (u) 2 (g) McNeilage v. Holloway, 1 B. & Ald. 221. The observation of Lord Ellenborough in that case "that a promissory note may be treated as a personal chattel in possession," is in- ' correct. See per Parke, B., Yates v. Madeley, 6 M. & W. 427. (r) Mason v. Morgan, 2 Ad. & E. 30. Connor v. Martin, cited 3 Wils. 5. (s) Hart v. Stephens, 6 Q B 937. (t) 33 & 34 Vict. c. 93. (u) Sect. 8. 1 See ante, pp. 258-271 (§§ 168-175), and notes thereto. 468. Liability of the husband upon the wife's contracts made before coverture.—At common law, if a feme sole executes a bond, or makes a promissory note, or accepts a bill of exchange, and then marries the husband and wife are jointly liable; (x) and, if judgment is recovered against them both in the wife's lifetime, execution may be issued against the husband, who may thus be compelled to fulfill his wife's contract made before marriage, or to discharge and satisfy the wife's debt. (y) But if these debts are not recovered against the husband and wife in the lifetime of the wife, the husband cannot be charged with them. And if the wife dies during the pendency of the action, and before a joint judgment has been obtained against them both, the husband is discharged, (z)1 but if she dies after judgment, the husband remains liable. If no action is brought during the coverture, and the wife survives, she remains as liable for the debt as she was before the marriage, (a) but if an action was brought and judgment recovered against husband and wife during the coverture, and if the husband became bankrupt, and obtained his discharge, the liability of both was gone at law, (b) although her property settled to her separate use at the time of the marriage remained liable in equity. (c) 2 This liability of the husband has been affected by (x) Drue v. Thorne, Aleyn, 72. Mitchenson v. Hewson, 7 T. R. 348. Hayward v. Williams, Sty. 280. Haydon v. Miller, 2 Rolle, 53. Milner v. Milnes, 3 T. R. 631. (y) Eyres v. Coward, 1 Sid. 337. O'Brian v. Ram, 3 Mod. 186. Bar. Abr. Baron & Feme (F). (*) Rolle Abr. 351, G. pl. 2. Heard v. Stamford, 3 P. Wms. 411. (a) Woodman v. Chapman, I Campb. 188. (6) Lockwood v. Salter, 5 B. & Ad. 303. Miles v. Williams, I P. Wms. 249, 257. (c) Chubb v. Stretch, L. R., 9 Eq 555. See ante, pp. 258-271 (§§ 162-175), and notes thereto. the Married Woman's Property Act, 1870, which provides (s. 22) that a husband shall not, by reason of any marriage that may take place after the coming into operation of the act, (d) be liable for the debts of his wife contracted before marriage; but she is liable to be sued for, and any property belonging to her for her separate use, is liable to satisfy, such debts as if she had continued unmarried. By the Married Woman's Property Act (1870), Amendment Act, 1874 (37 & 38 Vict. c. 50), s. 1, so much of the Married Woman's Property Act, 1870, as enacts that a husband shall not be liable for the debts of his wife contracted before marriage, is repealed so far as respects marriages which shall take place after the passing of the later Act, and a husband and wife married after the passing of the later Act may be jointly sued for any such debt. By s. 2, the husband shall in such action, and in any action brought for damages sustained by reason of any tort committed by the wife before marriage, or by reason of the breach of any contract made by the wife before marriage, be liable for the debt or damages respectively to the extent only of the assets hereinafter specified; and, in addition to any other plea or pleas, may plead that he is not liable to pay the debt, or damages in respect of any such assets as hereinafter specified; or, confessing his liability to some amount, that he is not liable beyond what he so confesses; and, if no such plea is pleaded, the husband shall be deemed to have confessed his liability so far as assets are concerned. By s. 3, if it is not found in such action that the husband is liable in respect of any such assets, he shall have judgment for his costs of defense, whatever the result of the action may be against the wife. (d) Aug. 9, 1870. |